State v. Lynn

• Decision Date: 19 December 1901
• Citation: 51 A. 878,19 Del. 316
• Court: Court of General Sessions of Delaware
• Parties: STATE v. JOHN LYNN

51 A. 878

19 Del. 316

STATE v. JOHN LYNN

Court of General Sessions of Delaware, New Castle County

December 19, 1901

Court of General Sessions, New Castle County, November Term, 1901.

INDICTMENT FOR OBTAINING MONEY BY FALSE PRETENSE (No. 49, November Term 1901).

Counsel for defendant filed the following motions:

"And now, to wit, this fifth day of December, A. D. 1901, the above named defendant in the above cause, by Walter H. Hayes and Levi C. Bird, Esquires, his attorneys, moves the Court here for the entry of a suggestion on the record, in order to change the venue in the above stated cause to Kent County and for a rule to show cause on the State of Delaware, in said cause, why venue should not be changed to said Kent County.

"The above named defendant, by Walter H. Hayes and Levi C. Bird his attorneys, moves the Court here, to quash the above stated indictment for the following reasons:

"1. Because said indictment was considered, found and returned to the Court here as a true bill by the grand jury of said New Castle County, every member of which is a taxable citizen of said county, and therefore interested in the result of said cause.

"2. That said indictment is uncertain, insufficient and indefinite."

"The defendant in the above stated cause, by Walter H. Hayes and Levi C. Bird, his attorneys, moves the Court here that a suggestion be entered on the record thereof stating that there is a legal exception to the Honorable Charles B. Lore Chief Justice, the Honorable William C. Spruance and the Honorable Ignatius C. Grubb, Associate Judges, sitting in said cause."

In support of said motions many affidavits by citizens of the county were read by Mr. Bird, and ordered filed. Mr. Ward subsequently filed counter affidavits. The substance of said affidavits is set forth in the opinion of the Court.

Mr. Bird:--I ask that the suggestion be entered on the record to change the venue to Kent County, and that there be issued a rule to show cause why the venue should not be changed to Kent County.

State vs. Windsor, 5 Harr. 512; State vs. Burris, 4 Harr. 582.

Verdict, guilty.

Herbert H. Ward, Attorney-General, and Robert H. Richards, Deputy Attorney-General, for the State.

Walter H. Hayes and Levi C. Bird for the defendant.

LORE, C. J., and SPRUANCE and GRUBB, J. J., sitting.

OPINION

LORE, C. J.:--

We think it does not require a rule. The State is represented here and takes notice of your motions--one to quash the indictment and the other to change the venue.

Mr. Bird:--We desire the clerk to set out upon the record the suggestion to change the venue.

Mr. Ward:--The suggestion is after the decision of the Court.

LORE, C. J.:--

That is after the decision of the Court. The application now is to file the papers. You have permission to file your motions and affidavits.

On December 7th arguments were made.

LORE C. J.:--

The motion for change of venue from New Castle, to Kent County is founded upon the allegation that the defendant cannot have a fair and impartial trial in New Castle County for two reasons:

1. That the Judges and jurors, who are to try the case, are all inhabitants and taxpayers of the county, and some of them freeholders therein; that as such, they are disqualified to sit in the case, being pecuniarily interested in any fine that may be imposed upon the defendant in case of conviction; which fine under the law of this State goes to the county.

2. Because there exists in the county a wipe-spread excitement and prejudice against the defendant.

We will consider the last named reason first.

The rule of law upon the ground of prejudice is that the Court must be satisfied of such prejudice by facts and circumstances; mere opinion is not enough.

People vs. Bodine, 7 Hill 147; State vs. Windsor, 5 Del. 512, 5 Harr. 512; State vs. Burris, 4 Del. 582, 4 Harr. 582.

The defendant has filed the affidavits of nine citizens of this county in addition to his own; who severally swear that they do not believe a fair and impartial trial can be had in this county, and give the facts and circumstances upon which they base their opinion.

Robert W. Currinder swears, that he heard a Mr. Gayner say "He would like to see John Lynn and the whole Levy Court arrested."

George H. Paradee swears, that he heard one William Gibbons on Maryland Avenue in the presence of a number of citizens say, "That John Lynn, the damn bugger, ought to be in jail." Also he heard other persons, whose names he does not know, say, "John Lynn ought to be put in jail for ten years."

Alfred D. Vandever swears, that he heard a man named Riley whose first name he does not know, say, "John Lynn ought to go to jail, that he was not better than a damned thief." Also heard Ambrose McVey say, "John Lynn ought to go to jail." Also heard several citizens say, whose names he cannot recall, "John Lynn ought to go to jail."

Millard F. Gregg swears, that he heard James Hunter say, "John Lynn ought to have his back lashed and the whole Levy Court ought to be in jail." Also heard Mr. Gayner say that "John Lynn and all the other members of the Levy Court ought to be in jail."

John W. McCoy swears, that he heard various parties, whose names he cannot recall, say "That John Lynn was a damned rascal and ought to be in jail."

William Gamble swears, that on the 26th day of November, at Rising Sun, in this county, before a number of people, he heard Daniel Dohl say, "That man, meaning John Lynn, who built the tunnel at the Workhouse, would walk through it; he would not want to be in John Lynn's place."

Alfred T. Coverdale swears, that he heard Charles Lippincott, at the works of the Harlan & Hollingsworth Company, in the presence of several persons, say, "John Lynn, the son of a bitch, ought to be put in jail for robbing the county."

Lindsey S. Wilson swears, that he heard Mr. Gayner say, before two persons, that "He was glad the committee of fifty had caught hold of it; he would like to see the whole of the Levy Court arrested, and mentioned John Lynn."

James Keenan swears, that he heard Philemma Chandler, a Levy Courtman, say, "John Lynn ought to resign from the chairmanship of the Levy Court, that he thought if he would, the indictment against him would be dropped, and that other citizens were of the same opinion."

Five of these affiants, viz., Currinder, Gregg, McCoy, Gamble and Wilson, hold office and receive their pay under the control of the Levy Court, of which the defendant is the president.

The material averments in the affidavits of William Gamble and James Keenan are expressly denied by Daniel Dohl and Philemma Chandler, who are charged with hostile expressions, in counter affidavits made by them and filed in this case.

The remaining hostile expressions are confined to about twelve other persons, some of whom were unknown to the affiants, and the expressions seem to have been accompanied by no excitement or approval on the part of the persons to whom they were addressed.

The defendant has therefore produced nine persons out of the entire population of this county, nearly all of whom reside in the City of Wilmington, who swear that they do not believe a fair and impartial trial can be had. On the other hand, the State has produced the affidavits of 186 reputable citizens from different parts of the county to the contrary; 47 of whom are members of the Citizens Association, whom the defendant alleges in his affidavit have combined, raised money and employed lawyers to prosecute him; but who aver they have no prejudice whatever against the defendant personally, but are only seeking to secure an honest administration of the finances of the county and to promote good government.

It is manifest from this state of facts that the charge of prejudice is not sustained.

The second reason for a change of venue, viz., the pecuniary interest of the Judges and the jurors who are to try the case, if it be true, unquestionably disqualifies them, and the change of venue should be granted.

It is a fundamental maxim of our law that no man shall sit as judge in his own cause; while it is equally true that the humblest as well as the most depraved of our people are guaranteed a fair trial by an impartial jury. The only question, therefore, for us to decide is, whether such pecuniary interest exists, either in law or reason, in the Judges and jury who are to try this case.

We have carefully examined the authorities cited by the counsel for the defendant in support of their contention; from the case of Hesketh vs. Braddock, 3 Burrows 1847, down; and are clearly of the opinion that all the well considered cases may be distinguished from the case at bar, and do not support the contention. Many of them were civil actions, and in all, the persons objected to were either practically parties to the action, or had such a distinct and tangible interest as to bring them within the principle and reason of the rule.

It should be borne in mind that this is in nowise an action for the recovery of a penalty or fine; in which the Judges or jury are directly interested; but it is a prosecution in the name of the State in which the fine is only a part of the punishment for the criminal offense charged in the indictment; it is therefore incidental to, and not the purpose or object of the prosecution; clearly showing that it comes neither within the reason or authority of the cases cited.

In Commonwealth vs. Ryan, 5 Mass. 90, much relied upon by defendant's counsel, which was an indictment for keeping a billiard table, where the fine went to the City of Boston, the objection being to the foreman of the grand jury, who was a citizen and taxpayer of Boston, C J. Parsons reasoning independently of the Massachusetts statute says...